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Himachal Pradesh High Court · body

2019 DIGILAW 1775 (HP)

Ajay Kanwar v. State of Himachal Pradesh

2019-11-25

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 211 of 2019, dated 06.10.2019, under Section 21 of the ND&PS Act, registered in Police Station Sadar Solan, District Solan, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is permanent resident of District Shimla and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 06.10.2019, at about 07:30 p.m., a police team was on patrol duty at place Shamlech Pul, Near Saahani Junk Shop NH 5. A person, who was carrying a bag on his shoulder, on seeing police took a slew and started hurriedly walking towards the back side. On suspicion the police apprehended the said person. Police associated two independent witnesses and in their presence the nabbed person disclosed his name as Ajay Kanwar (petitioner herein). In presence of the witnesses, the police checked the bag of the petitioner and found some brownish substance, which was wrapped in a plastic pouch. Police also recovered currency notes of denominations 2000 x 1, 500 x 21, 200 x 8, 50 x 12 and 100 x 7, in total an amount 15,400/- (rupees fifteen thousand four hundred) was recovered. The recovered brownish substance was found to be heroin and on weighment it was found to be 7.12 gms. Thereafter, the police completed all the codal formalities and a case was registered against the petitioner. Police prepared the spot map and also recorded the statements of the witnesses. The petitioner was arrested and during the course of investigation, he divulged that he is a truck driver and a drug addict. The petitioner further divulged that he used to purchase heroin from different people in small quantities for his consumption. On being chemically tested, the recovered stuff was found to be sample of Diacetyl morphine (Heroin). As per the police, after completion of investigation, on 22.11.2019 challan was presented in the learned Trial Court and now the case is listed on 03.12.2019. On being chemically tested, the recovered stuff was found to be sample of Diacetyl morphine (Heroin). As per the police, after completion of investigation, on 22.11.2019 challan was presented in the learned Trial Court and now the case is listed on 03.12.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a serious crime. In case the petitioner is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice, so the bail application of the petitioner be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Deputy Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of District Shimla and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. The petitioner is a drug addict and not the drug peddler, so the petition may be allowed and the petitioner may be enlarged on bail. Conversely, the learned Deputy Advocate General has argued that the petitioner has committed a serious crime and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, so it is prayed that the bail application of the petitioner may be dismissed. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when challan stands presented in the Court and the fact that the petitioner is a drug addict and not the drug peddler, so the application be allowed and the petitioner be enlarged on bail. 7. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when challan stands presented in the Court and the fact that the petitioner is a drug addict and not the drug peddler, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, the fact that he has kept the contraband for his self consumption, the petitioner is a drug addict and not the drug peddler, the quantity of the recovered contraband, the challan stands presented in the Court, the petitioner is permanent resident of District Shimla and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, considering the overall material, which has come on record, and without discussing the same at this stage, the petitioner is ready and willing to abide by the terms and conditions of bail, in case so granted, and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 211 of 2019, dated 06.10.2019, under Section 21 of the ND&PS Act, registered in Police Station Sadar Solan, District Solan, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/- (rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court. 8. In view of the above, the petition is disposed of.